Opinion
Cause No. IP99-1389-C-T/G
June 22, 2000
ENTRY REGARDING MOTION TO DISMISS AND/OR COMPEL ARBITRATION
Defendant, Larry Workman d/b/a/ Rally's Hamburgers, filed a motion to dismiss this action pursuant to Rule 12 of the Federal Rules of Civil Procedure. In the alternative, Mr. Workman requests that this matter be remanded to arbitration in accordance with the terms of the Dispute Resolution Program ("the Program") adopted by JVRJC Associates ("JVRJC"), Plaintiff Polly M. Jenks' employer.
JVRJC has also filed a separate motion to remand this matter to arbitration in accordance with the Program. JVRJC has incorporated by reference the arguments raised by Mr. Workman in support of this motion.
I. Background
All references to the Hertzman affidavit are to the first affidavit attached to the Memorandum in Support of Motion to Dismiss, and/or to Remand to Arbitration." There is also a second Hertzman affidavit attached to the "Reply to Plaintiff's Response to Motion to Dismiss, and/or to Remand to Arbitration." Since it is primarily duplicative of the prior affidavit, the court refers only to the first proffered affidavit.
The Program outlines a four-step process for resolving workplace disputes. The steps include: communication, executive review, mediation, and arbitration. (Workman Aff., Ex. C, at 5-8.) The Program encourages employees to use all four of the steps, but allows them to skip step one in certain circumstances. (Hertzman Aff., Ex. B, at 12.) It also allows the Company to skip steps one and two if a legal claim is involved. ( Id.)
The Program expressly states that "[y]ou and the Company must use the Executive Review, Step 2, and Mediation, Step 3, explained in this policy before requesting Arbitration. (Workman Aff., Ex. C, at 11.)
Though it is not expressly stated in the Program, both JVRJC and its employees agree to be bound by the conditions of the Program. The Program expressly says that it is "the exclusive means by which [the listed] problems may be resolved." (Workman Aff., Ex. C, at 5.) It also states that "the Program will prevent you from filing a lawsuit in court for individual relief for legal claims subject to arbitration." ( Id. ¶ 12.) This wording applies to both the Company and the employee. ( Id., Ex. C, at 5.) The legal claims subject to arbitration under the Program include,
To reinforce this, under the "Arbitration Fees and Costs" heading the Program states that "[i]f either party pursues a legal claim covered by the Dispute Resolution Program by any means other than Arbitration, the responding party shall be entitled to dismissal of such action, and the recovery of all costs and attorney's fees and expenses related to such action." ( Id. at 12.)
[A]ll those legal claims you may now or in the future have against the Company or against its officers, directors, shareholders, employees or agents, including claims related to any Company employee benefit program or against its fiduciaries or administrators (in their personal or official capacity), and all claims that the Company may now or in the future have against you, whether or not arising out of your employment or termination, except as expressly excluded under the "Claims Not Covered" section below.
The Program expressly includes claims of "discrimination (including but not limited to, claims based on . . ., sex,. . . . ( Id. at 10.)
( Id. at 9.) The only claims not subject to arbitration are:
Any claim by an employee for benefits under a plan or program which provides its own arbitration procedure;
Any criminal complaint or proceeding;
Restitution by an employee for a criminal act for which he or she has been found guilty of or has pleaded guilty or no contest or nolo contendere;
Any claim covered by worker's compensation;
Unemployment insurance claims;
Any non-legal dispute.
( Id. at 10.) However, prior to requesting arbitration, the Program states that both the employee and the company must use the executive review and mediation steps. ( Id. at 11.) Provided the claim progresses to the final step, the arbitration step, the Program outlines that a condition of arbitration is that the arbitrator's decision shall be final and binding on both the employee and JVRJC. ( Id. at 8.)
As was mentioned above, in certain circumstances, the company is allowed to skip the executive review step. However, mediation should still be used prior to requesting arbitration.
This point is clarified in the Questions Answers since A.44 states that, "[t]he arbitrator's decision is final and binding on both parties." ( Id., Ex. D, at 12.)
In addition to outlining the four-step process, the Program expressly states that it "is not and shall not be construed to create any contract of employment, expressed or implied." (Hertzman Aff., Ex. B, at 12.) Rather, it does not "in any way alter the at-will status of any employment." ( Id.)
Ms. Jenks was, and apparently still is, an at-will employee during her tenure with JVRJC.
Ms. Jenks was either a manager or assistant manager at all material times related to the Program. (Workman Aff. ¶ 8.) As a member of management, Ms. Jenks was responsible for explaining the Program to new employees, and seeing that the Program was administered correctly. ( Id. ¶ 9.) Not only did Ms. Jenks have a copy of the Program, but she also had a copy of the "Questions Answers About the Dispute Resolution Program," ("Questions Answers"), and used this material to explain the Program to employees. ( Id. ¶ 10.)
According to Defendants, the following fact scenario occurred. On September 18, 1998, Ms. Jenks approached Mr. Workman and informed him she was pregnant and she had previously miscarried. (Workman Aff. ¶ 16.) She then allegedly asked if "she could step down to an assistant manager" until she completed her pregnancy. ( Id.) They accommodated her request and recruited a new person to replace her as General Manager. ( Id.) Ms. Jenks stepped down to assistant manager on December 7, 1998, with her pay adjusted to reflect her reduced responsibilities. ( Id.) Immediately following the completion of her pregnancy, Ms. Jenks returned as "an acting manager at her former manager[']s salary and then shortly thereafter was returned to the full position of manager, which position she currently holds at that restaurant." ( Id.)
According to the "Questions Answers," a current employee's agreement to all the Program provisions is expressed by either continued employment, or by acceptance of "any transfers, promotions, merit increases, bonuses or any other benefits of employment." ( Id., Ex. D, at 1.) Answer 41 states that "both [the employee] and the Company give up the right to a judge or jury trial as a means of settling most employment-related disputes." ( Id. at 10.) The answers specify that "arbitration is the only external means the Company and its employees will be able to use to resolve legal disputes covered by the Program." ( Id. at 12.) Thus, according to the answers, both parties agree under the Program to arbitrate "any dispute that arises during the course of . . . employment." ( Id.) Finally, the answers state that regardless of whether the dispute arose before or after the Program was implemented, the employees' and Company's right to sue in court is terminated with the implementation of this Program. ( Id.)
Without using the steps outlined in the Program, ( Id. ¶ 14), Ms. Jenks filed her claim in this court subsequent to the Program's effective date. Ms. Jenks alleges that she was treated differently than other employees based solely on her sex/pregnancy. She contends that she was demoted from Manager to Assistant Manager by Defendants as a result of her sex/pregnancy. Ms. Jenks also alleges that Defendants retaliated against her after she complained of the discriminatory treatment. Ms. Jenks initially filed this action complaining of sex/pregnancy discrimination and retaliation for filing a complaint of sex/pregnancy discrimination against Mr. Workman on September 7, 1999. She then amended this complaint on February 14, 2000, to join JVRJC as a Defendant in this action, following the court order dated February 11, 2000, granting her motion to amend.
The court was not supplied with either a statement of facts or affidavit outlining Ms. Jenks' version of events.
II. Analysis
A. Motion to Compel Arbitration
The Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), provides that written agreements to arbitrate disputes, "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The Supreme Court has noted that the FAA "manifests a `liberal federal policy favoring arbitration agreements'." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). The Seventh Circuit has also noted that there is no question that the "Federal Arbitration Act, 9 U.S.C. § 1 et seq., has established a federal policy favoring arbitration and that the courts are required to `rigorously enforce agreements to arbitrate.'" Washburn v. Societe Commerciale de Reassurance, 831 F.2d 149, 150 (7th Cir. 1987) (citing Shearson/American Express v. McMahon, 482 U.S. 220, 225 (1987)). The federal courts generally endorse the concept of arbitrating employment disputes as a way of relieving the pressure such cases place on the federal judiciary's docket. Courts have noted that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration" with any doubts regarding scope being "resolved in favor of arbitration. . . ." Id. at 150-51 (citing Moses H. Cone Hosp., 460 U.S. at 24-25; see also Schacht, 742 F.2d at 390).
An arbitration agreement is only enforceable if it is a valid contract. See Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir. 1997). Federal courts examine state contract law principles to determine whether an arbitration agreement is a valid contract. See id. Under Indiana law, it is a combination of offer, acceptance and consideration that comprise a complete contract. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 598 (Ind. 1994) (rudimentary elements of a contract are offer, acceptance of the offer and consideration).
Here, Ms. Jenks challenges the Program as being unenforceable because she did not accept the agreement, and there was a lack of individual consideration necessary to bind her to the arbitration agreement.
1. Acceptance
Ms. Jenks contends that her signature acknowledging that she received the Program cannot constitute acceptance under Indiana law. However, Indiana law does not require that the form she signs has to specifically state she is agreeing to the terms, or even that she has to sign a form at all. See International Creative Management, Inc. v. D R Entertainment Co., Inc., 670 N.E.2d 1305 (Ind.Ct.App. 1996) (validity of contract not dependent on signature of parties as long as have assent by acts). Other jurisdictions have held similarly. See Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1439-40 (9th Cir. 1994), cert. denied, 513 U.S. 1044 (1994) (employee received employment handbook containing Program but had no signature requirement and that was sufficient); see also Lang v. Burlington N. R.R. Co., 835 F. Supp. 1104, 1106 (D.Minn. 1993) (unilateral verbal announcement of policy was sufficient); Kinnebrew v. Gulf Ins. Co., CA No. 3:94-CV-1517-R, 1994 WL 803508, at *2 (N.D.Tex. Nov. 28, 1994) (arbitration agreement upheld though unilaterally established by the employer's verbal announcement). Indeed, the court in Gibson explicitly endorsed JVRJC's method of instituting the Program-convening a meeting and distributing the explanatory paperwork:
Obviously, the strongest case for a court's finding that an employer and employee agreed to submit claims to arbitration will arise when the record indicates the employee has knowingly agreed to do so. If parties operate under these conditions, we believe that the twin goals of protecting federal rights and resolving claims where possible through arbitration will be effected. Moreover, the formation of arbitration agreements upon terms that both parties understand need not be unduly burdensome. The course that [the employer] undertook to alert those already employed to the change in policy (the convening of a meeting and the presentation of the appropriate documentation) demonstrates the feasibility of achieving this objective.Gibson, 121 F.3d at 1130. By receiving copies of the Program and Questions Answers, as well as attending the meeting, Ms. Jenks was put on notice that her acceptance of the agreement was evidenced by her continued employment with the Company.
It specifically states in "A.2" of the Questions Answers that "your agreement to all of the Program policy provisions, including the arbitration, will be expressed in one or more of the following ways, beginning December 15, 1998:
— By continuing your employment with the Company
— By accepting any transfers, promotions, merit increases, bonuses or any other benefits of employment.
(Workman Aff., Ex. D, at 1.)
Despite the endorsement mentioned above, Ms. Jenks contends that Gibson, 121 F.3d at 1131, supports her claim that she should not be bound by the arbitration agreement simply because she signed an acknowledgment of her receipt of the Program. In Gibson, the court held that the plaintiff was not bound by an arbitration agreement despite her signature acknowledging her receipt of the policy. However, the court in Gibson did not base its holding on whether there was acceptance. Rather, the court invalidated the agreement for want of consideration since the agreement only bound the employee and not the employer. See id. ("The Understanding contains no promise on NHC's part to submit claims to arbitration."). By contrast, there is sufficient consideration in this case, as seen in later discussion.
Under Indiana law, Ms. Jenks became bound by the Program when she continued her employment with JVRJC following the Program's implementation. See Raymundo v. Hammond Clinic Ass'n, 449 N.E.2d 276, 283 (Ind. 1983) ("A party may not claim benefits under a transaction or instrument and, at the same time, repudiate its obligations."); Anderson v. Indianapolis Ind. AAMCO Dealers Adver. Pool, 678 N.E.2d 832, 836 (Ind.Ct.App. 1997) ("[W]here a party receives the benefit of a contract for a period of time, he cannot later disavow its validity."); Matter of Estate of Palamara, 513 N.E.2d 1223, 1228 (Ind.Ct.App. 1987) ("In this state, a party may not accept benefits under a transaction or instrument and at the same time repudiate its obligations."). Upon receiving the Program and the Questions and Answers, and after attending the training session, Ms. Jenks appeared to be in a position to understand the Program, and expressed her acceptance of its terms by her continued employment. See Durkin v. Cigna Property Cas. Corp., 942 F. Supp. 481 (D.Kan. 1996) (the announcement of the policy, both in written form with the distribution of the policy and verbally in a meeting, sufficed to alert the plaintiff that the arbitration clause was a condition of her employment). In fact, part of Ms. Jenks' job was explaining the Program to new employees, and seeing that the Program was administered correctly. As such, since she was given the necessary information and chose to continue her employment with JVRJC, Ms. Jenks knowingly accepted the terms of the arbitration agreement. Thus, any claims coming within the Program's scope are subject to the Program's conditions.
Yet another distinction between this case and Gibson, relied on by Ms. Jenks to contend that no contract exists, is that Ms. Jenks received a copy of the Program prior to signing the acknowledgment form. Between the wording of the Program, the information provided in the question and answer section and the informational meeting, Ms. Jenks was provided with the necessary means to understand the Program and to be aware that acceptance of the Program was a condition of her continued employment with JVRJC. This is different from Gibson, where the plaintiff was not provided with a copy of the arbitration policy at the time of the signing of the agreement. See Gibson, 121 F.3d at 1128. In addition, in Gibson, the signature form was buried in a stack of papers given to the employee. In the present case, the only papers handed to Ms. Jenks were a copy of the Program and Questions Answers, while the signature form was passed among the employees. Since the signature form was dated December 5, 1998, and the training course took place on November 30, 1998, Ms. Jenks had already had exposure to the Program prior to signing the acknowledgment form along with the other employees. (Workman Aff., Ex. C, at 1-2.)
Cases from other jurisdictions are analogous to how Indiana law would resolve this matter and illustrate that the facts in this case provide strong support for finding that a contract exists between Ms. Jenks and JVRJC. See Venuto v. Insurance Co. of N. Am., No. CIV. A. 98-96, 1998 WL 414723, at *5 (E.D.Pa. July 22, 1998) ("[A]n employee's decision to continue working with an employer for a . . . period of time after the imposition of a new [arbitration] policy, demonstrates acceptance of its terms.") (citing Kinnebrew v. Gulf Ins. Co., CA No. 3:94-CV-1517-R, 1994 WL 803508, at *2 (N.D.Tex. Nov. 28, 1994) ("[F]ederal courts do not hesitate to find an enforceable agreement to arbitrate when an arbitration policy is instituted during an employee's employment and the employee continues to work for the employer thereafter."); Durkin, 942 F. Supp. at 488 (holding that an at-will employee's continued employment provided sufficient consideration for the arbitration provision)); see also Porter v. Cigna, No. CIV.A.1:96-CV765MHS, 1997 WL 1068630, at *1 (N.D.Ga., Mar. 26, 1997) ("[P]laintiff admits that defendant notified him of the new policy. Plaintiff's continued employment after such notification and failure to object to the new condition demonstrate his intent to be bound."). Given Ms. Jenks' acceptance of the benefit of continued employment in exchange for her agreement to arbitrate her claims, she is barred from now repudiating the agreement.
2. Consideration
Another required element for a valid contract is consideration. An "enforceable contract . . . is an exchange." Patel v. American Bd. of Psychiatry Neurology, Inc., 975 F.2d 1312, 1314 (7th Cir. 1992). As long as the facts demonstrate that some consideration has been exchanged, Indiana courts will not "inquire into the adequacy of the consideration exchanged in the contract." Ackerman v. Kimball Int'l, Inc., 634 N.E.2d 778, 781 (Ind.Ct.App. 1994), aff'd, 652 N.E.2d 507 (Ind. 1995). When consideration of some value is agreed upon by the parties, "the judgment of the parties as to its sufficiency will not be disturbed by the court." Tanton v. Grochow, 707 N.E.2d 1010, 1013 (Ind.Ct.App. 1999). This consideration can be either a benefit to Ms. Jenks or a detriment to JVRJC. See Gibson, 121 F.3d at 1130.
Though Ms. Jenks contends that no consideration has been exchanged to make this a valid contract, that is incorrect under Indiana law. Ms. Jenks contends that with respect to consideration, the present case is analogous to Gibson since the Program contains no promise on JVRJC's part. However, an examination of the Program demonstrates that such a promise does exist. The Program expressly states that the four-step process is "the exclusive means by which those problems may be resolved," (Workman Aff., Ex. C, at 5), and goes on later to state that the "claims and disputes subject to [a]rbitration include all those legal claims [the employee] may now or in the future have against the Company . . . and all claims that the Company may now or in the future have against [the employee]." ( Id. at 9.) Thus, in exchange for Ms. Jenks' promise to submit her legal claims to arbitration, JVRJC also agreed to do the same. As Gibson points out, usually consideration for one party's promise to arbitrate is the other party's promise to do the same. See Gibson, 121 F.3d at 1130; see also Brown v. Rexhall Indus., Inc., CA No. 3:96-CV-349RM, 1996 WL 662449, at *1 (N.D.Ind. Oct. 8, 1996) (consideration is employer's agreement to waive right to trial in court). Thus, consideration can also be found by way of JVRJC's agreement to be bound by the arbitrator's decision, thereby waiving its right to seek judicial determination of a raised claim. See Michalski v. Circuit City Stores, Inc., 177 F.3d 634, 636 (7th Cir. 1999) ("[employer]'s promise to be bound by the arbitration process itself serves as mutual consideration here."); Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d 361, 366, 368 (7th Cir. 1999) (holding that arbitration agreement, signed as a condition of plaintiff's employment, was supported by adequate consideration for two reasons: the plaintiff promised to arbitrate all future disputes in exchange for the company's promise to employ her, and both parties were bound by the terms of the agreement). This, combined with JVRJC's agreement to pay all expenses in the event of arbitration, demonstrate a detriment to JVRJC that can constitute consideration.
Ms. Jenks contends that since the Program states that it "is not and shall not be construed to create any contract of employment, expressed or implied" and does not "alter the at-will status of any employment," (Hertzman Aff., Ex. B, at 12), it expressly precludes her from being bound to any condition of employment, including an agreement to arbitrate. However, an arbitration agreement can be a condition of employment without establishing an employment contract that covers other areas of employment such as duration. See Ackerman, 652 N.E.2d at 509 (at-will employment continued despite employee's assent to arbitration agreement).
Though it is not expressly stated in the Program, JVRJC's agreement to be bound to the conditions of the Program is still identifiable. First, the Program states that this is the "exclusive means" for resolving "these problems." (Workman Aff., Ex. C, at 5.) Then, when defining what claims are subject to arbitration, the Program states that in addition to claims the employee may have, "all claims that the Company may now or in the future have against you . . .," are also covered. ( Id. at 9.) However, prior to requesting arbitration, the Program states that both the employee and the company must use the executive review and mediation steps. ( Id. at 11.) Provided the claim progresses to the final step, the arbitration step, the Program outlines that a condition of arbitration is that the arbitrator's decision shall be final and binding. ( Id. at 8.) This point is clarified in the Questions Answers since A.44 states that, "[t]he arbitrator's decision is final and binding on both parties." ( Id., Ex. D, at 12.)
Contrary to Ms. Jenks' assertion, the Program's express statement that it does not alter at-will employment does not mean that JVRJC has made no promises, thus offering no consideration. Consideration for a condition of employment such as an arbitration agreement does not have to come by way of additional benefits, such as a promised specific term of employment. Rather, under Indiana law, an agreement by an employer to continue at-will employment is adequate consideration to support a binding promise from an employee. See Ackerman, 634 N.E.2d at 781 (continued at-will employment is sufficient consideration for a binding contract).
As stated in the Program, the American Arbitration Association will bill the employee a filing fee of $120.00, but the Company will then pay all remaining fees. (Workman Aff., Ex. C., at 8.)
With the presence of an offer, acceptance, and consideration (by way of a combination of a benefit to Ms. Jenks and a detriment to JVRJC), a valid contract has been formed. This valid contract constitutes an agreement to arbitrate disputes arising from the employee's relationship with the employer. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Ind., 473 U.S. 614, 626 (1985) ("The first task of a court asked to compel arbitration of a dispute is to determine whether the parties agree to arbitrate that dispute."). When arbitration agreements are interpreted, "every doubt is resolved in favor of arbitration." Dickinson v. Heinold Sec., Inc., 661 F.2d 638, 643 (7th Cir. 1981). Thus, arbitration must be compelled "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." See Ziegler v. Whale Sec. Co., L.P., 786 F. Supp. 739, 741 (N.D.Ind. 1992) (quoting Morrie Mages and Shirlee Mages Found. v. Thrifty Corp., 916 F.2d 402, 406 (7th Cir. 1990)). Such is not the case here since the arbitration clause explicitly includes claims of sex discrimination. (Workman Aff., Ex. C, at 10.) Thus, Ms. Jenks' claim is substantively covered by the arbitration agreement and compliance with the Program is warranted.
The Program expressly states that "[y]ou and the Company must use the Executive Review, Step 2, and Mediation, Step 3, explained in this policy before requesting Arbitration. (Workman Aff., Ex. C, at 11.)
B. Motion to Dismiss Claim as to Mr. Workman
The moving party must meet a high standard in order to get a claim dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint should be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Under Rule 12(b), if the court considers documents outside of the complaint when ruling on a motion to dismiss, then it has been transformed to a Motion for Summary Judgment. Given that Ms. Jenks attached the letter to the Equal Employment Opportunity Commission from Mr. Workman as an exhibit, she was given sufficient notice that this has been converted to a Rule 56 Motion for Summary Judgment. (Pl's. Resp. Attach. B.)
". . . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b).
Though direct notice was not given in this instance, and compliance with the rules is required, here the court finds there is evidence of indirect notice as to the motion alteration since evidence was offered to create an issue of fact.
Here, the issues revolve around whether Mr. Workman constitutes an "employer." Title VII liability runs only against employers, not individuals. See Williams v. Banning, 72 F.3d 552 (7th Cir. 1995). Under Title VII, the term "employer" means a "person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or proceeding calendar year, and any agent of such person." 42 U.S.C. § 2000e-2a. Mr. Workman contends that he does not meet this definition of employer since he has no employees. (Workman Aff. ¶ 5.) Instead, the proffered tax form shows that JVRJC is Ms. Jenks' employer (Workman Aff. Ex. A, at 1.) However, Ms. Jenks contends that since Mr. Workman responded officially for "Rally's Hamburgers" once he received Ms. Jenks' charge, spoke on behalf of Rally's in first person and signed the response as "Operating Partner," without making any reference to a corporate entity such as JVRJC, there is an issue of fact as to whether he was the actual employer of Ms. Jenks.
These representations raise an issue of fact, which would require a denial of summary judgment. However, this denial is insignificant since the court has already found it appropriate to stay proceedings for further compliance with the Program. The issue of fact can be addressed by the arbitrator.
III. Conclusion
The strongest case in support of an arbitration agreement arises "when the record indicates the employee has knowingly agreed to do so." Gibson, 121 F.3d at 1129. Here, the record demonstrates a knowing acquiescence on Ms. Jenks' part. She was supplied with a copy of the Program along with the Questions and Answers and she attended a training session. Thus, she had knowledge of the Program prior to when she signed the acknowledgment form on December 5, 1998. Since she had the information needed to knowingly agree to the condition, and she complied by signing the form and enjoying the benefit of continued employment, enforcement of the arbitration agreement is warranted. Mr. Workman's Motion to Compel Arbitration, and JVRJC's Motion to Remand this Matter to Arbitration are GRANTED. Under § 3 of the FAA, trial proceedings are to be stayed "until such arbitration has been had in accordance with the terms of the agreement. . . ." 9 U.S.C. § 3. As a result, this court orders proceedings STAYED pending compliance with the Program. There is no final judgment at this time.
Mr. Workman's Motion to Dismiss, which is considered as a Motion for Summary Judgment, would be DENIED, due to the raised issue of fact. This is insignificant since the court has already determined that proceedings are to be stayed pending compliance with the Program.
Ms. Jenks' Motion for Oral Argument pursuant to Local Rule 7.5 is DENIED. This case presents no issues which require further elaboration through oral argument. The briefing was sufficient.
ALL OF WHICH IS ORDERED.
ORDER STAYING CASE PENDING COMPLIANCE WITH ARBITRATION AGREEMENT
For the reasons set forth in the court's Entry of this same date, this case is STAYED pending compliance with the Dispute Resolution Program. Plaintiff is ORDERED to submit this matter in a manner that complies with the four-step process outlined in the Dispute Resolution Program. Within thirty days after resolution of this matter either by executive review, mediation, or arbitration, counsel for the Defendant shall notify the court in writing of the result. The statutory periods for filing motions to confirm, vacate, modify or correct the decision pursuant to 9 U.S.C. § 9-12 shall apply. At this time there is no final judgment under Rule 58 of the Federal Rules of Civil Procedure.
Counsel for the Defendant is also ORDERED to notify the court of the status of the arbitration procedure on January 2, 2001 (unless the procedure is completed sooner) and on the first business day of each month thereafter.
Finally, copies of all notices referred to in this Order shall be served on opposing counsel.
ALL OF WHICH IS ORDERED.